Unpopular opinions, cakeshop edition
Jun. 7th, 2018 10:28 am![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
drwextl;dr Although I support both equal marriage and public accommodation laws to advance the rights and access of LGBTQ+ folks, I think the bakers should have won this case. However, the case was exceptionally messy and badly drawn, with the (in my view) right arguments added later. People forget that this case began before equal marriage was the law of the land. If my opinion enrages you, feel free to tell me so and/or skip this entry. I have lots of unpopular opinions.
First, let's please agree on the facts of this case. The baker did not refuse to serve the gay couple. He did not refuse to sell them a cake they could use for their wedding. I've seen photos of assholes posting "no gays allowed" signs, which is illegal and not even vaguely what the Court said. If you think I'm confusing that sh*t with this case, please don't. What the Masterpiece baker refused to do was to create a custom cake expressing the message they wanted for their wedding. I think he was within his rights to do so - the law (correctly in my mind) protects some forms of expression in business.
Second, let's separate out three items: accommodations, speech rights, and religious beliefs. Part of what makes this case messy and bad is that it originally posed religious beliefs against accommodation. The free speech issues were added later. In my opinion free speech > accommodations > religious beliefs. I also believe that "religious beliefs" are separable from "free exercise of religion". The latter, like speech, is a First Amendment right; the former is bullsh*t that religious people invented because they view equality as oppression.
Third, I believe that it's important to consider how one would feel if the positions were reversed. I would hate to live in a world where a baker was compelled to create a cake that contained the message "Abortion is murder" or "Jews are subhuman". This case is a little bit trickier than a simple text message since we don't know what the customer couple wanted on their cake, but I think it's safe to say that non-textual expression should be treated equivalently to written text for these purposes. I personally believe in the message "same-sex marriage is great" and I disbelieve in the "abortion is murder" message and my belief as well as my response to those expressions doesn't vary with whether the message is carried in words, images, or interpretive dance.
Fourth, I believe that government-compelled speech is as bad as government-prevented speech. If I am prevented from expressing myself, we understand it as censorship (in the context of government requirements; please don't get me started on all the people crying 'censorship' about private entities). We equally need to understand that the government requiring me to promote a message is a form of censorship. For example, Courts have upheld motorists' right to refuse to carry a state-mandated message on their license plates. A public accommodation law needs to be drawn in such a way as to avoid compelled speech for non-governmental people. If you work for the government, it has the right to tell you "this is what you must say with regard to this topic". Beyond that, no.
To jump back to the Masterpiece Cakeshop decision for a moment, I believe that the Court was right in calling out the speech of the commissioners. Even though what they said was historically accurate in that religious beliefs have motivated some of the most horrible behaviors in human history, that's not what's at issue, or shouldn't be. Speaking as a private person, the commissioner can say that. But speaking as the voice of the government, I think he has to be scrupulously religion-neutral. To give a personal example, I'd say there are a fair number of people who view Jewish male circumcision as a barbaric practice akin to FGM. I don't want those opinions influencing what medical procedures I have access to.
Putting all this together, I believe it's right and appropriate that the baker must be required to sell to same-sex couples without regard for their use of the shop's products. Likewise, I believe that devout Catholics must sell prescription birth control to women regardless of their faith's doctrine toward contraception. The public accommodation principles protecting peoples' access to goods and services should not be viewed as impinging on the speech rights of businesses engaged in ordinary commerce.
This, too, is not absolute and gets really hard when your business is itself speech. Imagine a sign shop owner who refuses to print a sign saying, "Welcome to Alan and Bob's Big Gay Wedding". I think that owner should be permitted to refuse to print such a sign; likewise, a tattoo artist should be permitted to refuse to write "F**K YOU N****R" on a customer's body.
Accommodations are drawn to protect disadvantaged groups of people because part of the disadvantage is that they are denied access to things that other people have easy access to. Straight people don't need these laws the way LGBTQ+ people, black people, women, and others do. Still, the artist should be permitted to refuse that tattoo request regardless of their race, or the race of the customer.
The speech right in my mind trumps the accommodation right, under the condition where there are other equivalent services available to me. When the Catholic hospital is the only one in town and refuses to follow my right-to-die medical directives because they view it as assisted suicide we have a different situation because I cannot access the services I need any other way. There are lots of other cake shops and tattoo parlors available, though, so I don't think the same standards apply. (Hard cases make bad law.)
Finally, I want to touch briefly again on the "religious beliefs" idea. I think this notion, as embodied in RFRA and equivalent state laws, is a horrible cancer on our legal system. Religious beliefs should not get special deference, nor should they be permitted to overrule other rights. In fact, the original claim in City of Boerne didn't even talk about "beliefs" - the Catholic Church argued that its free exercise of religion was impaired, and they still lost. On that scale, individual beliefs rank even lower. It's a fiction that the Constitution protects beliefs - it protects exercise of religion - and no case should rest on a fictional argument.
In this case the "beliefs" argument is doubly wrong because it does not matter why a person chooses to exercise their First Amendment rights. They may do so because of sincerely held beliefs, or they may do so because they're just pissed off that morning. The government may not inquire why someone chooses to exercise their rights; to allow that is to undercut those rights severely.
To wrap it up, I think the baker was engaged in protected expression in creation of a custom cake and should not be compelled to do that. At the same time, he cannot refuse service on the basis of the orientation of his customers, nor refuse to sell a cake that someone might use for a same-sex wedding. Since the Masterpiece baker did not do that, I reason that he should win this case.
First, let's please agree on the facts of this case. The baker did not refuse to serve the gay couple. He did not refuse to sell them a cake they could use for their wedding. I've seen photos of assholes posting "no gays allowed" signs, which is illegal and not even vaguely what the Court said. If you think I'm confusing that sh*t with this case, please don't. What the Masterpiece baker refused to do was to create a custom cake expressing the message they wanted for their wedding. I think he was within his rights to do so - the law (correctly in my mind) protects some forms of expression in business.
Second, let's separate out three items: accommodations, speech rights, and religious beliefs. Part of what makes this case messy and bad is that it originally posed religious beliefs against accommodation. The free speech issues were added later. In my opinion free speech > accommodations > religious beliefs. I also believe that "religious beliefs" are separable from "free exercise of religion". The latter, like speech, is a First Amendment right; the former is bullsh*t that religious people invented because they view equality as oppression.
Third, I believe that it's important to consider how one would feel if the positions were reversed. I would hate to live in a world where a baker was compelled to create a cake that contained the message "Abortion is murder" or "Jews are subhuman". This case is a little bit trickier than a simple text message since we don't know what the customer couple wanted on their cake, but I think it's safe to say that non-textual expression should be treated equivalently to written text for these purposes. I personally believe in the message "same-sex marriage is great" and I disbelieve in the "abortion is murder" message and my belief as well as my response to those expressions doesn't vary with whether the message is carried in words, images, or interpretive dance.
Fourth, I believe that government-compelled speech is as bad as government-prevented speech. If I am prevented from expressing myself, we understand it as censorship (in the context of government requirements; please don't get me started on all the people crying 'censorship' about private entities). We equally need to understand that the government requiring me to promote a message is a form of censorship. For example, Courts have upheld motorists' right to refuse to carry a state-mandated message on their license plates. A public accommodation law needs to be drawn in such a way as to avoid compelled speech for non-governmental people. If you work for the government, it has the right to tell you "this is what you must say with regard to this topic". Beyond that, no.
To jump back to the Masterpiece Cakeshop decision for a moment, I believe that the Court was right in calling out the speech of the commissioners. Even though what they said was historically accurate in that religious beliefs have motivated some of the most horrible behaviors in human history, that's not what's at issue, or shouldn't be. Speaking as a private person, the commissioner can say that. But speaking as the voice of the government, I think he has to be scrupulously religion-neutral. To give a personal example, I'd say there are a fair number of people who view Jewish male circumcision as a barbaric practice akin to FGM. I don't want those opinions influencing what medical procedures I have access to.
Putting all this together, I believe it's right and appropriate that the baker must be required to sell to same-sex couples without regard for their use of the shop's products. Likewise, I believe that devout Catholics must sell prescription birth control to women regardless of their faith's doctrine toward contraception. The public accommodation principles protecting peoples' access to goods and services should not be viewed as impinging on the speech rights of businesses engaged in ordinary commerce.
This, too, is not absolute and gets really hard when your business is itself speech. Imagine a sign shop owner who refuses to print a sign saying, "Welcome to Alan and Bob's Big Gay Wedding". I think that owner should be permitted to refuse to print such a sign; likewise, a tattoo artist should be permitted to refuse to write "F**K YOU N****R" on a customer's body.
Accommodations are drawn to protect disadvantaged groups of people because part of the disadvantage is that they are denied access to things that other people have easy access to. Straight people don't need these laws the way LGBTQ+ people, black people, women, and others do. Still, the artist should be permitted to refuse that tattoo request regardless of their race, or the race of the customer.
The speech right in my mind trumps the accommodation right, under the condition where there are other equivalent services available to me. When the Catholic hospital is the only one in town and refuses to follow my right-to-die medical directives because they view it as assisted suicide we have a different situation because I cannot access the services I need any other way. There are lots of other cake shops and tattoo parlors available, though, so I don't think the same standards apply. (Hard cases make bad law.)
Finally, I want to touch briefly again on the "religious beliefs" idea. I think this notion, as embodied in RFRA and equivalent state laws, is a horrible cancer on our legal system. Religious beliefs should not get special deference, nor should they be permitted to overrule other rights. In fact, the original claim in City of Boerne didn't even talk about "beliefs" - the Catholic Church argued that its free exercise of religion was impaired, and they still lost. On that scale, individual beliefs rank even lower. It's a fiction that the Constitution protects beliefs - it protects exercise of religion - and no case should rest on a fictional argument.
In this case the "beliefs" argument is doubly wrong because it does not matter why a person chooses to exercise their First Amendment rights. They may do so because of sincerely held beliefs, or they may do so because they're just pissed off that morning. The government may not inquire why someone chooses to exercise their rights; to allow that is to undercut those rights severely.
To wrap it up, I think the baker was engaged in protected expression in creation of a custom cake and should not be compelled to do that. At the same time, he cannot refuse service on the basis of the orientation of his customers, nor refuse to sell a cake that someone might use for a same-sex wedding. Since the Masterpiece baker did not do that, I reason that he should win this case.
no subject
Date: 2018-06-08 01:05 am (UTC)no subject
Date: 2018-06-08 01:45 am (UTC)no subject
Date: 2018-06-08 05:34 am (UTC)Besides, everyone knows I worship at the altar of TOS. :-)
no subject
Date: 2018-06-10 09:18 am (UTC)It's tricky along these dimensions independent of the text-vs-symbols issue.
I mean, I would not want to be compelled to put "Abortion is murder" on a cake. But if I created a cake that said "What you did is not OK!" and someone bought it to give to an acquaintance of theirs who'd just had an abortion, I'd feel crappy about it, but basically concede that yeah, I have no legal leg to stand on. In that case I don't mind creating the cake, I just don't want to sell it to _them_ for _that purpose_, and that's different.
Similarly, there's a difference between "Same-sex marriage is awesome!" and "Congratulations on your wedding!"
But, yeah, independent of what the cake said in this particular case, I basically agree that artists should get to refuse to produce art that they don't want to produce. (Whether cake decorators count as artists is, I think, a much less interesting question.) But having produced it, I don't think they get to refuse to sell it to people in protected classes just cuz they don't approve of what they think those people are going to do with their art. (I think we agree, here.)
no subject
Date: 2018-06-10 03:58 pm (UTC)American law has been largely treating symbols and words equivalently, which has had some salutatory effects - protecting flag burning and Piss Christ, just to name two.
> I don't mind creating the cake, I just don't want to sell it to _them_ for _that purpose_, and that's different.
But that's the point of the public accommodation rule. I think you should serve them equally to others, regardless of your belief. I think that the two sentences are equivalently protected, even though one is a more direct statement than the other.
no subject
Date: 2018-06-17 05:07 pm (UTC)I don't know enough about the ins and outs of this particular case to have a clear opinion myself, one way or the other.